Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘attorneys general’

Speed Trap Shut Down

Residents of central Ohio fear and loathe the town of New Rome. Most people, including the state’s Attorney General, suspect it exists only to line the pockets of a few people who live in its three block radius. The tiny town (pop. 60) has a per capita income of $12,983, but takes in $300,000 a year in traffic tickets. (Take a virtual tour of the town here.) It’s almost impossible to pass through New Rome without getting stopped for a violation, be it speeding or a broken tail light.

Ohio residents can breathe easy now. New Rome was dissolved this week by court order. Sometimes, the system works.

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Racial Profiling

Should the police use race as one of the characteristics upon which they make decisions about stopping and searching motorists or pedestrians? (The question assumes, of course, that the police are not operating from a description of a specific individual believed to be involved in a crime.) Among those who have answered “no” to a question of this sort is our nation’s Attorney General. Others think that the practice is OK, as long as it is consistent with efficient policing: after all, you wouldn’t want to focus lots of law enforcement on groups that are rare offenders, such as elderly women. But is it right that a black driver on I-95 in Maryland in the late 1990s was five times more likely to be subject to a search than was a white driver?

Those who take the “efficient policing” position often say that the disproportionate number of stops is OK, as long as the probability that a searched motorist is carrying contraband (in the case of anti-drug enforcement, the aim of most of the highway searches) is about the same for blacks as for whites. (This probability is sometimes called the “hit rate.”) By this reckoning, if only 5 percent of the blacks who are searched are found to be carrying drugs, while 20 percent of the whites searched are carrying, then the racial disparities in searches are not consistent with efficient policing and should be curtailed, eliminated, or reversed. On the other hand, if the hit rate for searches is about 20 percent for both groups, then the use of race as an indicator might be acceptable.

But I and my co-author, Michael Alexeev of Indiana University, think that this standard “efficient policing” story is mistaken, for reasons that I will mention after the “Continue reading…” link.

Read On…

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Calif. state senator Joe Dunn

He made a fortune suing doctors, then moved up to the California State Senate as a Democrat representing Orange County communities including Anaheim, Santa Ana, Fullerton and Garden Grove. Now he’s one of the chief guardians of trial lawyer interests in Sacramento. Will he run for state attorney general in 2006? (Michael A. Glueck, “The runaway trial lawyer”, Jewish World Review, Jul. 9). Dunn was chief sponsor of the first-in-the-nation bill signed into law by Gov. Gray Davis last year, authorizing lawyers to file private damage suits over labor code violations; see Oct. 20.

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Outsourcing enforcement in Mass

Massachusetts consumer protection law includes “item pricing” regulations.” A shopper who picks up an item marked $3.19, but is charged $3.59 at the checkout, has been the victim of a violation of these rules. If a state wishes to address such incidents, a practical question arises: how to enforce legal rules when they involve such trifling amounts of money per incident? Enter class action lawyers, naturally. According to the Boston Globe, Massachusetts Attorney General Thomas Reilly has farmed out the enforcement of these rules to a group of private attorneys — who are doing quite well for themselves. Cases against Home Depot and Wal-Mart have been settled; a settlement with Walgreen is pending. If the Walgreen settlement is finalized, the outcome of all this acitivity will be the payment of $3.2 million to the private attorneys, $3.9 million to “an eclectic group of charitable, consumer, and nonprofit groups,” and $425,000 to the AG’s Office. The list of favored groups includes, among others, the Roscoe Pound Institute and Public Citizen. The Globe points out that “it would be impossible to identify consumers hurt by item-pricing failures”; one of the private attorneys claims in the story that the payments to the favored groups will benefit Massachusetts residents, with most being used to “spur greater awareness of consumer rights.” Cases against other retailers (in addition to Walgreen) are pending. (Bruce Mohl, “Reilly turns to private enforcement of item pricing,” Boston Globe, June 27)

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State AGs on drugs

Those who follow the activities of state attorneys general know of their interest in the pharmaceutical industry. Last week, Vermont AG William Sorrell was named president of the National Association of Attorneys General (NAAG) for 2004-05. In his presidential address, Sorell announced that “the issue of drug pricing” would be NAAG’s “particular focus” during his tenure. Sorrell raised the following questions:

“What drives our high drug prices? Is it true that the pharmaceutical industry is the most profitable industry in this country? Is it true that our national spending on prescription drugs more than tripled from 1990 to 2001? Do research and development costs explain the prices we pay? What are the effects of advertising and other forms of marketing on demand for prescription drugs and the amounts we pay for them? If it is true that industry direct-to-consumer advertising expenditures increased seven times between 1995 and 2001, why has this been so and how are prices affected by these increases?

“What about conduct by companies that have violated state and federal antitrust, consumer protection and other laws? Is this another cost driver? And how transparent is the prescription drug marketing and distribution system? Why are cheaper generic equivalents neither prescribed by more doctors nor desired by more patients?”

There is a NAAG meeting scheduled for Chicago in January on this subject.

For more on this subject, go to this post on Point of Law.

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Guest blogger of the week

My name is Mike DeBow, and I teach property and corporate law at the Cumberland School of Law at Samford University, in Birmingham, Alabama. I am also interested in state law reform and issues surrounding state judicial selection. During 2000-2004 I served part-time as a special assistant to Alabama attorney general Bill Pryor.

Readers who, unaccountably, want more info about me can click here or here. What doesn’t show up on either of those webpages is the fact that I’ve been a guest blogger at Southern Appeal for almost a year.

I am a long-time fan of Walter’s, and a diligent reader of Overlawyered. My thanks to Walter for the invitation to join him this week.

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Mistook dance floor for conference workshop

New Hampshire: “Attorney General Peter Heed resigned abruptly Tuesday because of an allegation of inappropriate conduct with a woman. Gov. Craig Benson said the alleged incident occurred at a conference last month in Bretton Woods on preventing sexual and domestic abuse. …WMUR-TV reported that the alleged incident occurred after hours on a dance floor.” (Kate McGann, “New Hampshire A.G. Heed resigns over misconduct allegation”, Boston Globe, Jun. 15).

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Update: $1.3 billion tobacco fee reinstated

Profoundly depressing: “A Manhattan appeals court [last week] reinstated a $1.3 billion fee award for attorneys who helped to settle tobacco litigation in California, saying the arbitrators who awarded the fee did not exceed their authority and should not have been second-guessed by a state judge.” A year and a half ago Manhattan judge Nicholas Figueroa (Sept. 27-29, 2002) struck down as “irrational” the $1.25 billion fee award to the so-called Castano Group of lawyers, who had filed many different legal actions including one under a California private attorney general statute. As we commented at the time, the lawyers in question “didn’t actually represent California — the state’s own lawyers did that — and were in fact rivals, rather than allies, of the Scruggs-Moore team of lawyers who did manage to pull off the settlement. The Castano lawyers, however, repositioned themselves as somehow a catalyst for the national settlement and thus entitled to fees”. With an appellate panel’s quashing last August of Judge Charles Ramos’s inquiry into tobacco fees (see Aug. 10), the tobacconeers have now compiled a well-nigh perfect record of rolling over judicial opposition, with the notable exception of the Freedom Holdings v. Spitzer case in the Second Circuit (see Jan. 12). (Tom Perrotta, “$1.3 Billion Fee Upheld in California Tobacco Case”, New York Law Journal, May 19).

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New York’s Martin Act: Spitzer’s blank check

Why is New York Attorney General Eliot Spitzer so feared by the state’s financial community? A major reason is a little-known piece of 1921 New York legislation called the Martin Act, aimed at financial fraud. “It empowers him to subpoena any document he wants from anyone doing business in the state; to keep an investigation totally secret or to make it totally public; and to choose between filing civil or criminal charges whenever he wants. People called in for questioning during Martin Act investigations do not have a right to counsel or a right against self-incrimination. Combined, the act’s powers exceed those given any regulator in any other state.

“Now for the scary part: To win a case, the AG doesn’t have to prove that the defendant intended to defraud anyone, that a transaction took place, or that anyone actually was defrauded. Plus, when the prosecution is over, trial lawyers can gain access to the hoards of documents that the act has churned up and use them as the basis for civil suits.” Important reading (Nicholas Thompson, “The sword of Spitzer”, Legal Affairs, May-June). Radley Balko comments (May 12), and see our Jan. 17 item. More on Spitzer’s financial enforcement: Dec. 17, 2003; Jun. 17-18 and Oct. 30-31, 2002; Mar. 31-Apr. 2, 2000.

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W.Va.: McGraw holds off challenge

Incumbent West Virginia Supreme Court Justice Warren McGraw (see Sept. 4) withstood a stiff challenge in Tuesday’s Democratic primary. The race was one of the more expensive in state history, with plaintiff’s lawyers and labor unions backing McGraw and business groups heavily supporting challenger Jim Rowe, who won the endorsement of both Charleston papers. McGraw must still face Republican Brent Benjamin in November. (Toby Coleman, “McGraw defeats challenger”, Charleston Daily Mail, May 12; Scott Wartman, “Some say Justice race most important”, Huntington Herald-Dispatch, May 5).

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